Business Agreement / Contract

1.Term
1.1. This Agreement begins on the Date of this Agreement (“Commencement Date”) and continues until the end of the Term specified in Schedule 1 (“Initial Term”) unless extended under clause 1.2 or terminated earlier under clause 16 (“Right to Terminate”).

1.2. Unless the Licensee provides a notice of its election to renew this Agreement for a further period of 12 months (or such longer period as may be agreed by the Parties) (“Extended Term”) at least 3 months before the expiry of the Initial Term referred to in clause 1.1, this Agreement will terminate at the expiry of the Initial Term.

1.3. The same terms for supply of the Services excluding pricing which will be agreed by both Parties prior to the commencement of the Extended Term) as set out in this Agreement will apply to any Extended Term. If pricing cannot be agreed the licensee has the right to terminate.

2. Services and Licence

2.1. From the Commencement Date through the Term of this Agreement and any Extended Term, the Supplier will provide the Services to the Licensee, in consideration for the applicable Fees, on the terms of this Agreement (which terms includes associated Schedules annexed hereto).

2.2. Additional Services may be requested from the Supplier through a written Change Request or amendment to this Agreement.

2.3. In order for the Supplier to provide the Services, the Supplier:
a) Grants to the Licensee a fully paid-up (upon payment of the applicable Fees), non-exclusive, non-transferable (subject to the terms of this Agreement) licence, in accordance with the Specified Licensed Use outlined in Schedule 1, Clause B, for the Term to allow the Licensee and its Personnel to access and use the Application over the public internet solely for the internal business purposes of the Licensee andnot for distribution, transfer, sale or use for the benefit of any third party.

b) The licence granted in clause 2.3a) includes a licence to use any Upgrades released by the Supplier during the Term of this Agreement and the Supplier must promptly disclose to the Licensee any Upgrades during the Term of this Agreement.

c)    The Licensee agrees to allow the Supplier to migrate the Licensee to the updated version of the Application on the date the Upgrade is made available to the Licensee.

d) The Licensee may sub-licence its rights under this Agreement to the Authorised Users. The Licensee must inform each of the Authorised Users of the limitations that apply to their use of the Services or the Application under this agreement. However, the Licensee has no liability in connection with any use of the Services or the Application by any of the Authorised Users.

2.4. The Licensee retains all of its right, title and interest in and to the Licensee Data, and ownership of the Licensee Data is not transferred to the Supplier under this Agreement.

2.5. The Licensee and its Personnel shall not:
a) reverse engineer, decompile, translate, disassemble or attempt to discover any source code or underlying ideas or algorithms of the Application;

b) transfer, sell, lease, lend, disclose, or use for timesharing or service bureau purposes the Application;

c) remove or modify any Application markings or any other notice of the Supplier' proprietary rights on the Application or any related documentation;

d) create any derivative works based on the Application; and/or

e) access, scrape, copy, monitor or use any portion of the Application or any materials or other content on the Application by using any robot, "bot," spider, web crawler or other similar automatic device, except as approved in advance in writing by the Supplier.

2.6. Unless otherwise agreed in writing the Licensee acknowledges and agrees that the Supplier owns all right, title and interest in, and to, the Application, including all Intellectual Property Rights therein. The Supplier must configure the Application so that the driver of a vehicle must accept the statement contained in Schedule 3 or as otherwise approved by the licensee before the Application will commence collecting any data relating to the driver or his or her drive of the vehicle. All data collected by the Application or the Supplier as a result of the driver driving the vehicle will form part of the Licensee Personal Data. All rights, including all Intellectual Property Rights, in the Licensee Data will be owned by the Licensee.

2.7. If the Licensee engages the Supplier to perform Professional Services which are uniquely referable to its business, the Supplier and the Licensee shall, before any agreement becomes binding, agree in writing on who shall own all rights arising out of the performance of the Professional Services, including all deliverables resulting from such services and including all Intellectual Property Rights therein.

3. Service Levels

3.1. The Supplier must provide the Services to the Licensee: in accordance with this Agreement to meet or exceed the Service Levels.

(a) in accordance with this agreement.

(b) To meet or exceed the service levels; and

(c) in a proper, timely and efficient manner using that standard or care, skill, diligence, prudence and foresight that would reasonably be expected from a prudent, expert and experienced provider of services the are similar to the services.

3.2. Subject always to the provisions of Clause D of Schedule 2, where the Supplier fails to meet any Service Level due to the fault of the Supplier, the Supplier must promptly:

a)       if requested by a Licensee, and to the extent feasible given the nature of the Services, re-perform those Services which gave rise to the failure to meet the Service Level;

b)       use all reasonable endeavours to correct the fault which caused the failure to meet the Service Level (including conducting a root-cause analysis); and

c)       arrange all additional resources reasonably necessary to perform the Services in accordance with the Service Level as soon as practicable at no additional cost to the Licensee.

  1. Fees and Payment

4.1.     All Fees specified by the Supplier are exclusive of GST and are in Australian Dollars (AUD).

4.2.     In consideration of the Supplier performing the Services, the Licensee will pay the Supplier the Fees set out in Schedule 1, Clause C in accordance with Clause D of Schedule 1, Payment Terms.  

4.3.     The Supplier will render a Tax Invoice to the Licensee in relation to the provision of the Services.

4.4.     The Licensee will pay the Fees in accordance with this clause 4 by electronic funds transfer into the Suppliers nominated bank account as specified by the Supplier from time to time. For the avoidance of doubt, the cost of payment, including but not limited to any applicable bank fees or electronic transfer fees, shall be the responsibility of the Licensee.

4.5.     Unless otherwise agreed in Schedule 1D, each invoice will be paid by the Licensee to the Supplier within 14 days after the date of the invoice.

4.6.     Payments, which are not received by the due date, shall accrue interest on the unpaid balance at the rate of 2.5 percent per month, invoiced monthly by the Supplier to the Licensee.

4.7.     Should any invoice remain unpaid for more than 14 days from the invoice date, that are not in dispute, the Supplier reserves the right to temporarily suspend the Licensee’s access to the Application and Services until such Licensee pays all such invoiced amounts in full to the Supplier. Habitual failure by the Licensee to pay invoices timely (where habitual failure shall be defined as three or more instances in any 12 month period) shall be considered a material breach of this Agreement.

  1. Licensee Responsibilities

5.1.     The Licensee will perform the Licensee Responsibilities as outlined below, and in a proper, timely and efficient manner using that standard or care, skill, diligence, prudence and foresight that would reasonably be expected from a prudent, expert and experienced provider of services the are similar to the services.

5.2.     The Licensee shall be responsible for providing its own internal Equipment necessary for accessing the Application via the internet using the https protocol.

5.3.     The Licensee is responsible for keeping any logins and passwords secure and accessible only to the persons authorised to access the Application.

5.4.     Unless otherwise permitted under this Agreement, the Licensee shall not provide third parties with access to the Application without the prior consent in writing of the Supplier.

5.5.     The Supplier must notify the Licensee as soon as reasonably practicable after it becomes aware of any failure or likely failure by a Licensee to perform any obligation of the Licensee under this Agreement, including a failure to perform any of the Licensee Responsibilities. Consent shall not be unreasonably withheld or delayed.

5.6.     The Supplier will not be in breach of this Agreement to the extent that its failure to perform an obligation is a result of a Licensee’s failure to perform an obligation of the Licensee under this Agreement, including the Licensee Responsibilities.

5.7.     Where the Supplier incurs additional costs in performing the Services in these circumstances, it may raise a Change Request and submit to the Licensee for its approval, such approval not to be unreasonably withheld.

  1. Security and Privacy Requirements

6.1.     The Supplier will use reasonable commercial efforts not to breach protect and preserve the security andor integrity of Licensee Data as set out in the Licensee’s policies as set out in clause 6.2.

In the performance of the Services, the Supplier must comply, and must ensure that the Supplier Personnel comply, with any applicable security policy or requirements supplied to the Supplier in writing.

6.2.     The Supplier will process all Licensee Data in connection with this Agreement only for the purposes of performing its obligations under this Agreement.

1.1.              The Supplier will comply with all reasonable requests or directions of the Licensee in connection with the obligations of the Licensee under the Privacy Laws.

1.1.              The Supplier will not disclose Licensee Data collected for the purposes of this Agreement without the prior written authority of the Licensee unless the disclosure is required by law, in which case the Supplier must immediately notify the Licensee where it becomes aware that a disclosure of Licensee Data may be required.

6.3.     The Supplier will not transfer outside Australia Licensee Data collected for the purposes of this Agreement, or allow parties outside Australia to have access to such Licensee Data, without the prior written approval of the Licensee, unless the disclosure is required and permitted by applicable law. The Supplier is liable to the Licensee for any unauthorised use or disclosure of Licensee Data by a party to which the Supplier Transfers Licensee Data.

6.4.     The Supplier will notify the Licensee immediately promptly if it becomes aware of a breach of any of clause 6 by itself or any employee, agent or sub-contractor of the Supplier.

6.5.     The Supplier will keep all Licensee Data confidential and secure and will not allow any unauthorised third party to access or use the Licensee Data.

6.6.     The Supplier will:

a)       comply with all applicable data privacy and protection laws (including but not limited to the Privacy Act 1988 (Cth)) in the course of performing its obligation under this Agreement;

b)       only access, collect, use, disclose, store, process, transfer or otherwise handle the Licensee Personal Data as necessary to perform the Supplier's obligations under this Agreement or otherwise as in accordance with the Supplier’s Privacy Policy;

c)       follow the Licensee’s reasonable directions in relation to the Supplier’s use of the Licensee Personal Data; and

d)       protect the Licensee Personal Data it holds from misuse, interference and loss, as well as maintain/implement systems and processes to ensure the security of the Personal Data.

6.7.     The Licensee agrees that it has collected and shall maintain and handle all Personal Data that is contained within the Licensee Data in compliance with all applicable data privacy and protection laws.

6.8.     The Licensee must comply with all applicable privacy and protection laws, and must at all times follow the reasonable directions of the Supplier, in relation to any Personal Data provided to the Licensee by the Supplier in accordance with this Agreement or pursuant to the provision of the Services.

6.9.     The Licensee authorizes the Supplier to process its Personal Data in accordance with the provisions of this Agreement and the Supplier’s Privacy Policy.

6.10.  The Licensee agrees to indemnify the Supplier for any loss, damage, liability or expenses incurred by the Supplier which is caused by a breach of 6.7, 6.8 or 6.9.

6.11.  For the avoidance of doubt, this clause applies only to Personal Data which is provided to the Supplier in connection with this Agreement.

  1. Confidentiality

7.1.     Without prejudice to any provision of this Agreement relating to security, privacy or data protection, each Party undertakes and agrees:

a)       to hold in strict confidence all Confidential Information received from the other Party and not to disclose or permit or cause the Confidential Information to be disclosed to any person (save with the other party’s prior written consent) other than any of its Personnel who reasonably require access to the Confidential Information; and

b)       not to make use of the Confidential Information (including duplicating, reproducing, distributing, disseminating or directly or indirectly deriving information from the Confidential Information), except and solely to the extent permitted or required by this Agreement,

c)       the Parties are liable for any misuse of the Confidential Information by their employees, unless the Party has obtained the prior written consent of the other Party to do so (which consent may be withheld by the disclosing Party in its discretion or given on such terms as it sees fit).

 

7.2.     Clause 7.1 does not apply to:

a)       information after it becomes generally available to the public other than as a result of the breach of clause 7.1 or any other obligations of confidence imposed on the receiving Party; or

b)       the disclosure of information in order to comply with any applicable law or legally binding order of any court, Government Agency or recognised stock exchange, provided that to the extent that it is reasonable or practical;

i)   prior to such disclosure the receiving Party gives notice to the disclosing Party with full particulars of the proposed disclosure;

ii)  the receiving Party provides the disclosing Party with reasonable assistance in the opposing or limiting of such disclosure; and

iii)the receiving Party limits such disclosure to that strictly required by such court, Government Agency or legal process and otherwise continues to observe the obligations of this clause 7 with respect to such Confidential Information.

c)       information that is already known to the receiving Party at the time of its disclosure by the disclosing Party, and is not subject to confidentiality restrictions imposed by the disclosing Party;

d)       following its disclosure to the receiving Party, is received by the receiving Party from a third party without obligation of confidence to the disclosing Party; or

e)       Information that is independently developed by the receiving Party without reference to or use of the disclosing Party’s Confidential Information.  

7.3.     Each Party acknowledges that failure to comply with this clause 7 may irreparably harm the business of the other Party and that a breach of one Party’s obligations under this clause 7 will entitle the other Party to seek immediate injunctive relief, in addition to any other remedies that it may have.

7.4.     If requested by the disclosing Party, whether prior to or after the expiry or earlier termination of this Agreement, the receiving Party must promptly deliver to the disclosing Party all Confidential Information in its (or any of its Personnel’s) custody, possession or control.

7.5.     This clause 7 will survive the termination of this Agreement.

  1. Audit

The Supplier may audit Licensee’s use of the Application periodically to ensure the proper and compliant licensed use by the Licensee of the Application. This would be done remotely after authorisation from the user.

  1. Change Control

9.1.     If a Party wishes to propose a change to the Services (a “Change”), it must send a Change Request to the other Party’s Representative (being the Licensee Representative or the Supplier Representative, as the case may be), specifying in as much detail as is reasonably practicable, the nature of the Change sought, the costs involved and the likely timeframe for delivery of the Change.

9.2.     If the Licensee wishes to extend the Term of the Agreement and/or increase the Specified Licensed Use, the Licensee will complete the Supplier License Extension, which will outline the agreed Term, Fees and Specified Licensed Use.

9.3.     The Supplier may provide Upgrades to the Application without following the Change Control process described in this clause 9.

9.4.     Within 7 days after receiving a Change Request, the receiving party must advise whether it accepts or rejects such Change.

  1. Intellectual Property Rights

10.1.  The Supplier indemnifies the Licensee in respect of any Liabilities incurred or sustained by the Licensee to a third party resulting from any actual or alleged infringement of any Intellectual Property Rights caused by:

a)       the performance of the Services by the Supplier;

b)       the exercise by the Licensee or any Authorised User of the rights granted to it under this Agreement; or

c)       enjoyment use of the Services by the Licensee or any Authorised User in accordance with this Agreement.

10.2.  Notwithstanding anything in this Agreement to the contrary, the Supplier shall have no obligation or liability to a Licensee Indemnified Party or any third party for any Claim in which the alleged infringement directly or indirectly arises from:

a)       the Licensee’s or its respective employees’, agents’ or other users’ Misuse or modification of the Application, Services or related documentation;

b)       the Licensee’s failure to use corrections or enhancements such as patches or fixes made available by the Supplier or a third party, which use would avoid such infringement; or

c)       use of the Application, Services or related documentation in combination with any computer program, product, material, service or information not provided by the Supplier for such use.

10.3.  The Licensee indemnifies the Supplier in respect of breach or of misuse of Intellectual Property rights of the Supplier under this Agreement, by the Licensee or the Licensee’s employees, agents, officers or directors. This clause 10.3 will survive the termination of this Agreement and does not apply to any of the Authorised Users.

10.4.  The Licensee agrees to put the Authorised Users on notice that the Application is confidential.

(b) the licensee’s failure to use corrections or enhancements such as patches or fixes made available to the licensee by the supplier or a third party.

  1. Insurance

The Supplier must obtain and maintain insurance cover at all relevant times to cover any loss or costs that may be incurred and for which the supplier is liable in connection with the supply of goods under this agreement.[M+K1] 

  1. Mutual Representations and Warranties

12.1.  Each Party represents and warrants from the date of this Agreement and at all times during the Term, that:

a)       they have full capacity and authority to enter into and to perform this Agreement;

b)       this Agreement is executed by a duly authorised representative of that Party;

c)       there are no actions, suits or proceedings pending or, to that Party’s knowledge, threatened against or affecting that Party before any court or administrative body or arbitral tribunal that might affect the ability of that Party to meet and carry out its obligations under this Agreement;

d)       once duly signed this Agreement will constitute legal, valid and binding obligations;

e)       they will perform their obligations under this Agreement in accordance with all applicable laws and regulations; and

f)      they will act in a timely manner with regard to all reasonable requests from the other Party.

  1. The Supplier Representations and Warranties

13.1.  The Supplier represents and warrants from the date of this Agreement and at all times during the Term, that:

a)       It has all necessary licences, permits and consents to enter into and to perform this Agreement; and

b)       The services supplied as part of or for the provision of the Services, will materially comply with the “Implementation Services”; and

c)       To the best of the Supplier’s knowledge, the Application and the Services will be fit for the purposes for which they are supplied; and

d)       To the best of the Supplier’s knowledge, the Application and the Services will be free from programming errors and viruses; and

e)       The Application and the Services will comply fully with the Specifications.

13.2.  The Licensee must notify the Supplier of any Service warranty deficiencies within 60 10 calendar days of Installation Acceptance as outlined in Schedule 1, Clause E.

13.3.  Save from the right to terminate for breach as set out in clause 16.2 The Licensee’s sole remedy with respect to the warranties in this clause 13 for the Services will be for the Supplier to re-perform the specific Services which were not as warranted at no additional charge, or if the Supplier cannot correct the breach in a commercially reasonable manner, for the Supplier to refund the fees paid for the applicable non-conforming Services which were not as warranted, however, the foregoing remedy shall not exceed a period of two months fees.

13.4.  Except as otherwise set forth in this Agreement, neither party makes any warranties of any kind to the other party with respect to the Application or Services including, without limitation, any implied warranty of merchantability or fitness for a particular purpose.

  1. Indemnity

14.1.  The parties agree that the Licensee will indemnify the Supplier Indemnified Party and the Supplier will indemnify the Licensee Indemnified Party from and against all Liabilities that a party incurs to a third party arising out of or in connection with, directly or indirectly, any one or more of the following:

a)       Negligence, Wilful Misconduct or breach of statutory duty by a party or its Personnel (and their officers, servants, agents, and assignees) arising out of or in connection with the performance or non-performance of this Agreement that results in personal injury or tangible property damage; or

b)       a breach of the other party’s Intellectual Property Rights.

14.2.  The indemnification obligations in this clause 14 are at all times subject to the indemnified party notifying the indemnifying party promptly.

  1. Limitation of Liability

15.1.  Neither Party shall be liable to the other for any indirect, consequential, incidental, exemplary, punitive or special damages or lost profits (whether in contract or in tort).

15.2.  The total Liability of a Party under this Agreement will be limited to an amount equal to the Fees paid and payable by the Licensee to the Supplier for the 12-month period preceding the date on which the cause of action arose.

15.3.  The limitations of Liability contained in clause 15.1 do not apply to:

a)       the indemnification obligations of the Parties under the Agreement;

b)       Liability howsoever arising in connection with any act or omission of a Party under this Agreement, or in performance of the Services, in respect of:

i.      death or personal injury of any person;

ii.     loss of, or damage to, tangible property of any person;

iii.   fraud or fraudulent misrepresentation of a Party;

iv.    Wilful Misconduct of a Party;

v.     breach by a Party of any confidentiality obligation, whether under this Agreement, common law, equity or otherwise.

  1. Right to Terminate

1.1.              Either Party may terminate this Agreement immediately by notice in writing to the other Party if the Other Party becomes Insolvent or ceases or threatens to cease business.[M+K2] 

16.1.  Either Party may terminate this Agreement immediately by notice in writing to the other Party if the other Party commits a material breach of this Agreement and:

a)       the breach cannot be remedied; or

b)       the breach can be remedied, but the other Party fails to do so within 7 days of the Party not in breach giving notice of the breach and requirement to remedy.

16.2.  Upon termination or expiration of this Agreement:

a)       all rights of the Licensee to use and access the Application or Services shall cease;

b)       the Licensee shall pay the Supplier all Fees due for Services provided up to the date of termination or expiration; and

c)       the Licensee can at any time request from the Supplier a quotation for the cost of the production of a report containing all the data which the Supplier is storing on behalf of the Licensee (including without limitation all Licensee Data) in accordance with the Licensee’s specific reporting requests (“the Report”) and the Supplier shall provide such quotation within a reasonable period after being requested to do so. Upon production of the quotation and agreement on the costs to be payable by the Licensee to the Supplier for the production of the Report (such agreement not to be unreasonably withheld or delayed), the Supplier shall provide the Report to the Licensee.

d)       After the provision of the Report the Supplier must at the request of the Licensee (at the Licensee’s cost) delete all such data (including all copies of such data) from the Supplier’s systems.

16.3.  There shall be no refund of any Fees previously paid to the Supplier unless this Agreement is terminated by the Licensee pursuant to clause 16.12 or 16.23 of this Agreement.

16.4.  Clauses 7, 10, 14, 15, 16 and 25 survive the termination or expiry of this Agreement.

  1. No Assignment or Transfer

a)       Subject to the terms contained in this Agreement, the Licensee may not assign, sub-license, novate, transfer or otherwise dispose of any of its rights or obligations under this Agreement except to a related company and/or member of the Licensee Group without the prior written consent of the Supplier which will not be unreasonably withheld or delayed.

b)       Further neither the Supplier nor the Licensee may assign, encumber or otherwise deal with its rights under this Agreement without the prior consent in writing of the other party, such consent not to be unreasonably withheld provided that the Licensee consents to an assignment and/or novation of this Agreement in favour of a purchaser of the business of the Supplier who is reputable and solvent and who accepts the terms and conditions of this Agreement. In all other cases an assignment or novation may be subject to such reasonable conditions as to reputation, solvency and guarantees as the other party requires.

c)       In the event that the business of the Licensee is to be sold or otherwise transferred to a third party, the Licensee shall use reasonable endeavours to procure that the acquirer accepts the novation of this Agreement as a condition of such sale or transfer. The Licensee will notify the Supplier in writing in the event that the acquirer wishes to accept the novation of this Agreement and the Supplier will have a period of 30 days from receipt of such notice ("the Option Period") within which to elect to have this Agreement novated. In the event that the Supplier elects to not have this Agreement novated within the Option Period, then this Agreement will terminate at the expiry of the Option Period.

d)       This clause does not apply in the event that any relevant brand distribution rights of the Licensee are terminated or withdrawn.

  1. Third Party Providers

The Licensee acknowledges and agrees that the Supplier may utilise Third Party Providers for the provision of the Hosted Service Facilities. The supplier will be liable for all acts ond omissions of such third party providers as though they were the actions of the supplier.

  1. Relationship of the Parties

Nothing contained or implied in this Agreement means a Party is the partner, agent, or legal representative of any other Party for any purpose or creates any partnership, agency or trust, and no Party has any authority to bind any other Party in any way.

  1. Notices

20.1.  Any notice, demand, consent or other communication (“Notice”) given or made pursuant to this Agreement

a)       must be in writing;

b)       be marked to the attention of the Licensee' Representative or the Supplier Representative (as applicable);

c)       must be delivered by prepaid post, by hand, or e-mail to the Party to whom the notice is addressed at its address shown at the commencement of this Agreement or such other address as that Party may have notified to the other.

  1. Severability

Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. This does not invalidate the remaining provisions of this Agreement nor does it affect the validity or enforceability of that provision in any other jurisdiction.

  1. Entire Agreement

This Agreement contains the entire Agreement between the parties with respect to its subject matter and supersedes all prior communications and negotiations between Licensee and the Supplier in this regard, unless those communications expressly form part of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to this Agreement except as expressly stated in this Agreement. No Party shall have any remedy in respect of any untrue statement made by any other Party upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently or was as to a fundamental matter including as to a matter fundamental to the other Party's ability to perform its obligations under this Agreement) and that Party's only remedies shall be for breach of Agreement as provided in this Agreement.

  1. Licensee Standard Terms

If during the Term the Licensee issues a request for Services which attaches a separate set of terms and conditions other than those incorporated in this Agreement, those terms and conditions will not form part of, or be incorporated into, this Agreement and will be of no legal force or affect between the parties.

  1. Dispute

24.1.  In the event of any dispute, question or difference of opinion between the Licensee and the Supplier arising out of or under this Agreement (“Dispute”), a Party may give to the other affected Party a notice specifying the Dispute and requiring its resolution under this clause 24.

24.2.  Unless specified otherwise in this Agreement, any Dispute must first be submitted to the managing Directors of each party for resolution.

24.3.  If the Dispute is not resolved within 30 days of the Dispute being referred to the respective Dispute Representatives, then any Party to the Dispute may refer the Dispute to be finally resolved by a mediator appointed by agreement of the parties or, if the parties cannot agree to a mediator, a mediator shall be appointed by the President of the Law Institute of Victoria, Australia on behalf of the parties.

24.4.  If a dispute cannot be resolved by virtue of clauses 24.2 and 24.3, the parties can elect to refer the dispute for resolution by the courts of Victoria, Australia.

  1. Amendment, Variation and Waiver

Except as expressly provided in this Agreement, a provision of this Agreement or a right created under it, may not be waived or varied or amended except in writing, signed by the Party or Parties to be bound.

  1. Waiver

A failure to exercise, or any delay in exercising any right power or remedy by a Party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.

  1. Further Assurances

Each Party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.

  1. Negotiation in Good Faith

Where a provision is prohibited or unenforceable, the parties must negotiate in good faith to replace the invalid provision which is in accordance with the applicable law and which must be as close as possible to the parties' original intent and appropriate consequential amendments (if any) will be made to this Agreement.

  1. Survival

Subject to any provision to the contrary, this Agreement will enure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but will not enure to the benefit of any other persons.

 

  1. Change in Law

    “Change of Law” means a change in law or regulation of a State, Territory or the Commonwealth of Australia (including the imposition of an additional regulatory requirement) having a material impact on the Services.

    If a Change in Law occurs during the Term then:


a)      to the extent that the Change in Law directly results in an increase in the cost to the Supplier of providing the Services, the Supplier may increase its Fees relating to the Services to reflect the Change in Law by giving notice to the Licensee; and

b)      to the extent that the Change in Law results in the Supplier being required to undertake certain tasks, cease to undertake certain tasks or otherwise change the manner in which it carries out the Services, the Supplier is entitled to amend this Agreement in a reasonable manner to reflect the Change in Law by giving not less than 60 days’ prior written notice to the Licensee.

 

  1. Definitions

30.1.  These meanings apply unless the contrary intention appears:

a)         Application means the computer software and programs and/or data in Executable Code form, branded as Dealer Drive, together with any technical information and documentation necessary for the use of such programs and/or data, provided by the Supplier, to the Licensee together with other materials as they exist as of the Commencement Date, and Upgrades thereto released during the term of the Agreement, and which is accessed and used by the Licensee.

b)         Application Services means the provision of access to the Application and related Services.

c)         Authorised User means the Licensee's Personnel and any third party who has entered into a sales, service and parts agreement with the Licensee in respect of any of the vehicles distributed by the Licensee in Australia.

d)       Change is defined in clause 9.

e)       Change Control means the procedure for Changes as set out in clause 9.

f)        Change Request means any written request by a Party for Changes pursuant to Change Control.

g)       Claim means any action, suit, proceeding or demand of any kind whether in Agreement, negligence (or any other tort), under statute or otherwise at all.

h)       Commencement Date means the date for commencing the provision of the Services by the Supplier to the Licensee.

i)        Confidential Information means either the Licensee Confidential Information or the Supplier Confidential Information, as the context requires.

j)        Consulting Services are Professional Services delivered by the Supplier’ Consultants and include training.

k)        Equipment means one or more servers and/or workstations located at facilities owned or leased by the Licensee.

l)        Fees mean the charges payable by the Licensee for the provision of the Services as set out in Schedule 1C.

m)     Hosted Service Facilities means one or more servers located at the Supplier’ nominated Third Party Provider.

n)       Implementation Services means the configuration and related Professional Services provided by the Supplier to the Licensee in order to set up the Application for the Licensee, and are as outlined in Schedule 1E.

o)       Included Technical Services are Professional Services included as part of the Implementation Services that must be utilised by the Licensee within a period of 12 months from the Commencement Date.

p)       Indemnified Party means the Licensee, its Personnel and its Authorised Users.

a)           Insolvency or Insolvent means, in respect of a Party, that the Party ceases to trade because it is unable to pay its debts when they fall due, has an administrator or receiver or is otherwise deemed insolvent under the Corporations law of Australia.

q)       Installation Acceptance means the Installation Acceptance process which signifies the successful installation of the Application as outlined in Schedule 1E.

r)        Intellectual Property Rights means (in the context of a Party) copyright and similar rights which may subsist or may hereafter subsist in works or any subject matter, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, rights in relation to designs (whether or not registrable), rights in relation to registered or unregistered trade marks, circuit layout designs and rights in relation to circuit layouts, but excludes non-assignable moral rights and similar non-assignable personal rights of authors and producers.

s)        Liabilitiesmeans damages, losses, liabilities, fines, penalties, claims, costs and expenses (including legal fees on a solicitor-client indemnity basis) of any kind.

t)        Licensee Confidential Information means this Agreement, and any information (in whatever form, including information which is in oral, visual or written form or is recorded in any other medium) of a confidential nature (or which the Supplier or its Personnel ought reasonably to know to be confidential) which relates to the business, affairs or activities of a Licensee or members of the Licensee Group (including in relation to the Services), including Licensee Data and/or information comprised in Licensee Data, which is required to be kept confidential and which:

i)   is disclosed to the Supplier or its Personnel by or on behalf of a Licensee;

ii)  is generated by the Supplier or its Personnel in performing the Services; or

iii)otherwise comes to the knowledge of the Supplier or its Personnel.

u)       Licensee Data means all data, information, drawings or other materials which are embodied in any electronic or tangible medium, and which are made available by the Licensee to the Supplier or which is generated, collected, processed, archived, stored and/or transmitted under this Agreement, including any Licensee Personal Data.

v)       Licensee Group means the Licensee and all Related Bodies Corporate of the Licensee.

w)      Licensee Indemnified Party means the Licensee and its Authorised Users, officers, employees, servants, licensees, assignees, agents and Related Bodies Corporate.

x)       Licensee Personal Data means the Personal Data that Licensee uploads into the Application or transfers to the Supplier from time to time in connection with this Agreement.

y)       Licensee Responsibilities means those responsibilities of Licensee as set out in clause 5.

z)       Material Breach includes the non-payment of any service fees in accordance with this agreement.

aa)    Misuse means:

i)   Licensee’s use of the Application in a manner that creates a substantial risk of damage to the Application, Licensee Data or other Licensee or The Supplier information stored, or a material security risk thereto;

ii)  Licensee’s material breach of its nondisclosure obligations under the Agreement with respect to the Application;

iii)Licensee’s material breach of the license rights granted to Licensee under clause 2.1 of this Agreement; or

iv)Licensee’s material breach of its obligations under this Agreement pertaining to The Supplier’ Intellectual Property Rights in the Application.

bb)    Party means a party to this Agreement and Parties means all the parties to this Agreement.

a)           Personal Data means any information relating to a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, or an online identifier.has the same meaning as Personal Information as set out in the Privacy Act (Cth) 1988.

cc)    Personnel of a Party means the officers, employees, Third Party Providers, Professional advisers of that party and agents of that Party and its Related Bodies Corporate.

dd)    Professional Services meansConsulting Services or Technical Services provided by the Supplier and specified in the Agreement or Change Requests.

ee)    Related Body Corporate has the meaning set out in the Corporations Act 2001 (Cth).

ff)       Representative of a Party may be an employee, agent, officer, director, advisor, partner, consultant, or subcontractor of that Party as nominated by that Party under at the commencement of this Agreement.

gg)    The Supplier Confidential Informationmeansthis Agreement, the Application platform (including without limitation, the Application and the flow of screens),any benchmark tests related to the Application and any information (in whatever form, including information which is in oral, visual or written form or is recorded in any other medium) or documentation of a confidential nature (or which the Licensee ought reasonably to know to be confidential) which relates to the business, affairs or activities of The Supplier (including in relation to the Services) which is required to be kept confidential and which:

i)   is disclosed to the Licensee or its Personnel by or on behalf of The Supplier;

ii)  is generated by the Licensee or its Personnel from such confidential information; or

iii)otherwise comes to the knowledge of a Licensee or its Personnel.

hh)    The Supplier Licence Extension refers to the process for modifying the Terms, Fees or Specified Licence Use.

ii)       The Supplier Indemnified Party means the Supplier and its officers, employees, servants and agents.

jj)       The Supplier Personnel means all employees, agents, consultants and Third Party Providers of the Supplier.

kk)      Service Levels means the minimum performance levels for the Support Services set out in Schedule 2.

ll)       Service Level Default means a failure to meet a Service Level.

mm)Services means services to be provided by the Supplier to the Licensee under this Agreement, as set out in Schedule 1, including Application Services, Implementation Services, Support Services and Professional Services provided in connection with the access and use of the Application by the Licensee.

nn)    Specification is the documentation developed by the Supplier with the Licensee, and signed off by both Parties prior to the execution of this Agreement detailing the Licensee’s specific Application, performance and functional requirements.

 

oo)    Support Services means the ongoing assistance provided by the Suppliers account services representatives as described in Schedule 2.

pp)    Technical Services are Professional Services delivered by the Suppliers Developers and include application configuration, customisation or modifications that are requested by the Licensee.

qq)    Tax or Taxesincludes Good and Services Tax and Indirect Transaction Taxes.

rr)       Tax Invoicemeans an invoice or other document, including without limit a credit note or debit note.

ss)      Third Party Provider means an organisation engaged by the Supplier to provide Hosted Service Facilities.

tt)       Term means the term of this Agreement from the date of this Agreement as set out in Schedule 1.

uu)    Upgrade means any bug fixes, error corrections, modifications, updates, upgrades and new versions of the Application that are provided by the Supplier generally to its clients at no additional charge.

vv)     Wilful Misconductmeans a conscious and voluntary act or omission of a Party which falls materially below the standard of care which a reasonable person would have exercised in the position of the Party and thereby amounting to a wanton or reckless disregard for or violation of the rights or safety of others.

ww)   Franchise Brand refers to the respective dealers franchises.

  1. General Terms

31.1.  ($) the reference to “$” is a reference to the lawful currency of the Commonwealth of Australia;

31.2.  (reference to a Business Day) a Business Day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;

31.3.  (meaning not limited) the words “include”, “including”, “for example” or “such as” are not used as, nor are they to be interpreted as, words of limitation and when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind;

31.4.  Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this Agreement.

 

  1. Applicable Law

32.1.  The law applicable to this Agreement shall be the law of the State of Victoria.

 

 

© All rights not expressly granted are reserved.

 [M+K1]This should be amended to specify precisely the insurance that is required to be held by DD (i.e. product liability insurance up to X amount).

 [M+K2]We suggest this is deleted to comply with the new Ipso Facto laws coming into effect 1 July.